The Estate of Francis Peter Gervais, Owner; Maurice Seely Maude and Another, Petitioners

Judgment Date27 January 1903
Date27 January 1903
CourtChancery Division (Ireland)

Chancery Division

Ross, J.



Batchellor v. LawrenceENR 9 C. B. (N. S.) 543.

Dering v. Earl of WinchelseaENR 1 Cox Ch. Cas. 318.

Evans v. BrembridgeENR 2 K. & J. 174.

Ex parte Trueman 1 Deac. & Chitty's Rep. 464.

Forbes v. JacksonELR 19 Ch. D. 615.

Handcock v. Handcock 1 Ir. Ch. R. 444.

Newton v. ChorltonENR 10 Hare, 646, at p. 650.

Nicholson v. Revill 4 A. & E. 675.

Robinson v. GeeENR 1 Ves. Sen. 250.

Rouse v. The Bradford Banking CompanyELR [1894] A. C. 586.

Swire v. RedmanELR 1 Q. B. D. 536.

Joint and several bonds — Judgments thereon — Release of one judgment debtor — Relationship of co-debtors.

172 THE IRISH REPORTS. [1903. V.-C. contention that it was converted into an absolute gift was based 1902. upon the disposal of the income. But this was not given abso RUSSELL lutely, and was expressly subject to the same contingency, namely, v. RUSSELL. attaining twenty-five, that applied to the principal. How then could a gift in its terms contingent be rendered absolutely vested by being coupled with a gift of the savings of the income, which was in its terms expressly contingent on the very same event ? For these reasons, I hold that the gifts of both capital and income failed by reason of the death of the testator's nephew before attaining the prescribed age of twenty-five years. Solicitor for the executors : Morgan. Solicitor for James Russell : _Ryan. Solicitor for Mary Russell : H. Morgan. J. MAC M. Ross, J. IN THE MATTER OF THE ESTATE OF FRANCIS PETER 1903. GERVAIS, OWNER; MAURICE SEELY MAUDE Arm ANOTHER, PETITIONERS. Joint and several bonds—Judgments thereon—Release of one judgment debtor —.Relationship of co-debtors. A and B executed their joint and several bonds in the penal sum of £6000, and judgment was marked on each bond separately. Subsequently, in 1845, the judgment creditors released the lands of A : Held, that as the relationship between A and B was that of co-debtors, and not that of principal and surety, the release of A did not release B. OBJECTION to the final schedule of incumbrances, by Francis Nicholas Evans, on the ground that the judgment set out at No. 23 in the final schedule was stated to be treated as released owing to the effect of the deed of release of the 23rd of July, 1845, whereas that deed having been executed by the judgment creditors of the Rev. Francis Gervais only, the judgment having been obtained on the date set out in the final schedule against the Vat. I.] 011A.NCEILY DIVISION. 173 Rev. Francis Gervais and Francis John Gervais, was not released Ross, I. owing to the effect of the deed of release in respect of the interest 1903. of Francis John Gervais in the lands for sale in this matter ; andal-21 re Eitv)ias' accordingly that the townlands of Tycanny, Bettany, Tullanafoile, ESTATE. Femaghdrum, Tamlaght and Aghnaseclagh, part of the lands for sale in this matter, were liable to the judgment set out at No. 23 in the final schedule. The facts appear fully in the judgment. S. L. Brown, K.C., for the objector : This is a question of law and of fact. The question of fact is, whether Francis John Gervais was a surety ? The relationship of principal and surety can be inferred from any legal evidence which is evidence against the persons against whom it is sought to establish it. It cannot be inferred from the fact that one of the parties was the father of the other ; there must be something more. Admitting that there are only two documents, the settlement and the will, from which the inference of the fact of suretyÂship could be drawn, only one of them—the settlement—is eviÂdence against the trustees, and that does not contain a recital or a line which would warrant the Court in holding that one party was principal and the other surety. As against the trustees of Mrs. Evans' settlement, one...

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